J. I. Case Threshing Machine Co. v. Johnson, 152 Wis. 8

152 Wis. 8 | Wis. | 1913

Marshall, J.

The sole question for decision is this: In case the holder of a chattel mortgage recovers a judgment for the mortgage indebtedness and enforces it by an'execution, levy, and an advertisement for sale of all the mortgagor’s interest in such property, is that .an election of remedies releasing the mortgage title ?

There are many authorities supporting the affirmative of the proposition. Evans v. Warren, 122 Mass. 303, and Dyckman v. Sevatson, 39 Minn. 132, 39 N. W. 73, are good types thereof. There are also many authorities supporting the negative. The following are good types thereof: Byram v. Stout, 127 Ind. 195, 26 N. E. 687; Barchard v. Kohn, 157 Ill. 579, 41 N. E. 902. The great weight of authority, especially of recent origin, and the better reasoning are in harmony with the latter. It is fast coming to be generally accepted that where the mortgagor is recognized, as here, to have an equity of redemption, even after maturity of the debt, —Flanders v. Thomas, 12 Wis. 410; Smith v. Coolbaugh, 21 Wis. 427,— he has. an interest in the property which may be mortgaged by him or levied upon and sold by his creditors, and that' the mortgagee is in no worse position in that respect than any other creditor. In this state there is no written or unwritten law on the subject. Therefore the court is free t'o adopt the rule which to it seems best.

There can be no waiver without actual or implied intent to waive. That is elementary. The intent may be actual, or conclusively presumed from conduct without any element of estoppel. That also is elementary. Such intent is conclusively presumed when a party chooses one of two plainly inconsistent remedies. Such is not the case in the circumstances iii question. The mortgagee’s pursuit of the interest in the mortgaged property retained by his mortgagor, is consistent with intention not to surrender his mortgage interest. Such proceedings as were taken by the mortgagee here, to collect his claim by action, remembering that as to the particular case such proceeding went no further than a levy which was released, are merely aimed at the mortgagor’s interest and may consistently recognize the co-existence of the mortgage title, so the reason for the rule that by taking one course the right to take a different and inconsistent one is waived and lost, does not apply.

By the Court. — The judgment is affirmed.